The most important opinions for the second quarter of 2018.

Administrative

State disability findings may deserve substantial weight

An administrative law judge erred in according little weight to a North Carolina Department of Health and Human Services determination that the Social Security claimant qualified as disabled. The ALJ also did not properly consider the limited extent to which the claimant could perform daily activities.

Woods v. Berryhill (Lawyers Weekly No. 001-077-18, 16 pp.) (Motz, J.) No. 17-1500; Apr. 26, 2018; from WDNC at Asheville (Cogburn, J.). Charlotte W. Hall for Appellant; Leo Rufino Montenegro for Appellee. 4th Cir.

Attorneys

Legal Malpractice Claim – Auto Insurance – Certified Question

An insurer may maintain a direct malpractice action against counsel hired to represent its insured where the insurance company has a duty to defend.

We answer the federal district court’s first question in the affirmative and decline to answer its second question.

Sentry Select Insurance Co. v. Maybank Law Firm, LLC (Lawyers Weekly No. 010-057-18, 18 pp.) (John Few, J.) (Donald Beatty, C.J., joined by Kaye Hearn, J., dissenting) Certified questions from the U.S. District Court. Daryl Hawkins for plaintiff; David Overstreet, Michael McCall, and Steven Kropski for defendants. S.C. S. Ct.

Attorneys

Tort/Negligence – Immunity – Attorney-Client Relationship

A reading of defendants’ answer and errata answer leaves the court uncertain as to whether or not defendant Spears served as attorney for the Kozel defendants (who caused sexual assault charges to be filed against plaintiff). Because an essential element of the affirmative defense of attorney immunity is absent, the court cannot grant defendant Spears’ motion for judgment on the pleadings as to plaintiff’s state law claims on the basis of attorney immunity.

Kozel v. Kozel (Lawyers Weekly No. 002-062-18, 35 pp.) (J. Michelle Childs, J.) Bakari Sellers, Karl Bowers Jr., Patrick Malone, and Heather Heidelbaugh for plaintiffs; Jason Shipp, Andrew Addison Mathias, Catharine Garbee Griffin, David Haber, Dennis John Roman, Rebecca Yanos, Timothy Stienstraw, William Wilkins, Amy Coco, Charlene Seibert,  James Mixon Griffin, Margaret Nicole Fox, and Patrick Malone for defendants. 7:16-cv-01672; D.S.C.

Civil Practice

$150,000 sanction on counsel, firms upheld

Attorneys’ “egregious” conduct was designed to, and did, mislead the district court, the 4th Circuit affirmed. They challenged the authenticity of a loan agreement for two years before revealing that they possessed an identical copy, obtained from their client, before filing the complaint. Their firms ratified their conduct and were thus jointly liable, though an associate’s liability was capped at $100,000 for his lesser role.

Six v. Generations Fed. Credit Union (Lawyers Weekly No. 001-097-18, 25 pp.) (Duncan, J.) No. 17-1548; May 31, 2018; from MDNC at Greensboro (Eagles, J.) Kannon K. Shanmugam for Appellants; Leslie Sara Hyman for Appellee. 4th Cir.

Civil Practice

Court lacked jurisdiction to weigh equitable tolling

A petitioner filed her “innocent spouse” tax claim one week late because IRS representatives allegedly misinformed her of the filing deadline, but the U.S. Tax Court had no authority to waive compliance.

Nauflett v. Comm’r of Internal Revenue (Lawyers Weekly No. 001-105-18, 10 pp.) (Agee, J.) No. 17-1986; June 14, 2018; from US Tax Ct. Allison Bray for Appellant; Richard Caldarone for Appellee. 4rh Cir.

Civil Practice

Damages – Settlement – Setoff – Mediation Confidentiality – Tort/Negligence – Slip & Fall

Even though mediation proceedings are confidential, a settlement agreement reached in mediation is not confidential under Rule 8, SCADR. The trial court should have considered the settlement agreement to determine whether defendant was entitled to a setoff pursuant to S.C. Code Ann. § 15-38-50.

We reverse the trial court’s denial of defendant’s motion to disclose settlement and for setoff.

Huck v. Oakland Wings, LLC (Lawyers Weekly No. 022-031-18, 6 pp.) (Lee, A.J.) Substituted opinion. Appealed from Charleston County Circuit Court (Brian Gibbons, J.) Kenneth Michael Barfield and Diane Summers Clarke II for appellant; Edward K. Pritchard III and Elizabeth Fraysure Fulton for respondents. S.C. App.

Civil Practice

Discovery – Trade Secrets – Evidentiary Privilege – Certified Question

In answer to a question certified from the U.S. Court of Appeals for the Fourth Circuit, yes, South Carolina does recognize a qualified evidentiary privilege for trade secrets.

South Carolina does not delineate specific privileges through its rules of evidence. Rather, our evidentiary privileges are provided through an assortment of sources: the state or federal constitution, the common law, or a statutory provision.

Hartsock v. Goodyear Dunlop Tires North America Ltd. (Lawyers Weekly No. 010-042-18, 14 pp.) (John Kittredge, J.) (John Few, J., dissenting) On certification from the 4th Circuit. Wallace Lightsey, M. Gary Toole, E. Duncan Getchell Jr. and Michael Brady for Defendants-Appellants; Mark Tanenbaum and Mia Lauren Maness for Plaintiff-Respondent; Debora Alsup for Amicus Curiae the Rubber Manufacturers Association; Frank Epps and Hannah Rogers Metcalfe for Amicus Curiae the South Carolina Association for Justice. S.C. S. Ct.

Civil Practice

Judgment debtor didn’t delay payment owed to Medicare

A plaintiff who was owed a medical-malpractice judgment that would partially be reimbursed to Medicare had standing to sue the judgment debtor for delayed payment. However, the 37 days between the judgment and payment did not constitute “delay.”

Netro v. Greater Baltimore Bed. Ctr. Inc. (Lawyers Weekly No. 001-096-18, 26 pp.) (Wilkinson, J.) No. 17-1597; June 4, 2018; from DMD at Baltimore (Russell, J.) George Somerville Tolley III for Appellant; Christina Nicole Billiet for Appellee. 4th Cir.

Civil Practice

Judgments – Post-Mediation Dismissal – Clerk’s Jurisdiction

Even though the parties had agreed to settle their dispute, the clerk of court had no authority to dismiss their case without notice or hearing.

We reverse the trial court’s denial of plaintiff’s motion under Rule 60, SCRCP.

Innovative Waste Management Inc. v. Crest Energy Partners GP, LLC (Lawyers Weekly No. 011-052-18, 4 pp.) (D. Garrison Hill, J.) Appealed from Circuit Court in Dorchester County (Maité Murphy, J.) Frederick John Jekel, Patrick Aulton Chisum, William Michael Gruenloh, and Brian Ross Holmes for Appellant; David Marvel for Respondents. S.C. App.

Civil Practice

Mediation – Party Participation Requirement – Attorney Contact

The trial court granted third-party defendant N3A Manufacturing Inc.’s motion to participate in mediation by telephone, and N3A did not inform the other parties of any scheduling conflict. Although N3A asserts that its counsel was in communication with a representative from N3A and that its counsel had full authority to speak on behalf of N3A at the mediation, N3A violated Local Civ. Rule 16.08(A)(2) (D.S.C.) by failing to have an “officer, director, or employee having full authority to settle the claim” available at the mediation.

The court grants defendant/third-party plaintiff’s motion for sanctions and plaintiff’s request for the same.

Aiken Hospitality Group, LLC v. HD Supply Facilities Maintenance, Ltd. (Lawyers Weekly No. 002-067-18, 5 pp.) (J. Michelle Childs, J.) James Murray, Charles Stebbins III and Mitchell Snyder for plaintiff; Mark Steven Barrow and Ryan Charles Holt for defendant/third-party plaintiff; Carl David Hiller, William Padget and Lloyd Weinstein for third-party defendant. 1:16-cv-03093; D.S.C.

Civil Practice

Rule 21 – Insurance – Workers’ Compensation – Guaranty Association

Our appellate courts have not yet decided whether an unincorporated business trust can be sued after it has voluntarily dissolved; therefore, it was not within the circuit court’s discretion to dismiss such a claim under Rule 21, SCRCP.

We reverse the circuit court’s grant of defendant CompTrustAGC of South Carolina’s motions to quash discovery and to be dismissed under Rules 12(b) and 21, SCRCP.

Farmer v. CAGC Insurance Co. (Lawyers Weekly No. 011-053-18, 8 pp.) (D. Garrison Hill, J.) Appealed from Circuit Court in Richland County (G. Thomas Cooper Jr., J.) Howard Van Dine III, Allen Mattison Bogan and Erik Tison Norton for Appellant; Michael Molony, Thantus Douglas Concannon, Russell Grainger Hines and Geoffrey Ross Bonham for Respondents. S.C. App.

Civil Practice

Rule 59(e) – No Extensions – Banks & Banking – Non-Customer

We reiterate that the 10-day deadline in Rule 59(e), SCRCP, is an absolute deadline. A trial court does not have the power to alter or amend a final order if more than 10 days pass and no Rule 59(e) motion has been served, nor does a trial court have any power to grant the moving party an extension of time in which to file a Rule 59(e) motion. The failure to serve a Rule 59(e) motion within 10 days of receipt of notice of entry of the order converts the order into a final judgment, and the aggrieved party’s only recourse is to file a notice of intent to appeal.

We affirm summary judgment for the defendant-banks.

Overland, Inc. v. Nance (Lawyers Weekly No. 010-050-18, 4 pp.) (John Few, J.) Appealed from Greenville County Circuit Court (Letitia Verdin, J.) Carl Muller and T. Hunt Reid for Petitioner; James Sheedy, Susan Driscoll, Zachary Lee Weaver and W. Howard Boyd Jr. for Respondents. S.C. S. Ct.

Civil Rights

ADA & Rehabilitation Act – Provision of Services – Wheelchair and Speech Assistance

Plaintiff Kobe has been provided with the augmentative communications device (ACD) and the wheelchair he requested; he has failed to make out claims against all but one of the defendants. As to the defendant-governor, based on plaintiff’s allegations of, inter alia, the delay in providing the needed devices (e.g., Kobe was initially provided an ACD that only allowed him to use pre-recorded phrases), the court finds that plaintiff has stated a claim against the governor under the Americans with Disabilities Act and the Rehabilitation Act.

The governor’s motion to dismiss is denied. The remaining defendants’ motions for summary judgment are granted4, without prejudice to plaintiffs’ filing a new action to address their new allegations.

Kobe v. McMaster (Lawyers Weekly No. 002-076-18, 52 pp.) (Margaret Seymour, S.J.) 3:11-cv-01146; Patricia Harrison for plaintiffs; Christie Newman, Vance Bettis, Shahin Vafai, Kenneth Paul Woodington, William Henry Davidson II, Damon Wlodarczyk, Nikole Deanna Haltiwanger, Roy Laney, David Allan DeMasters, Patrick John Frawley, Erica Parker, Christian Stegmaier, Meghan Hazelwood Hall, Joel Wyman Collins Jr., Robin Lilley Jackson, Sandra Jane Senn and Leslie Arlen Cotter Jr.  D.S.C.

Civil Rights

Constitutional – Right to Counsel – Municipal Courts

Where plaintiffs allege that defendants’ municipal courts incarcerated the unrepresented indigent plaintiffs, plaintiffs have stated claims under 42 U.S.C. § 1983 for violation of the Sixth Amendment and the Equal Protection Clause.

The court denies defendants’ motion to dismiss.

Bairefoot v. City of Beaufort (Lawyers Weekly No. 002-105-18, 16 pp.) (Richard Mark Gergel, J.) 9:17-cv-02759; Benjamin Rush Smith III, Ezekiel Reifler Edwards, Stuart Murray Andrews Jr., Susan King Dunn and Twyla Carter for plaintiffs; Kenneth Paul Woodington and William Henry Davidson II for defendants. D.S.C.

Civil Rights

FOIA – Accommodations Tax – Designated Marketing Organization – Records Review

Although the defendant-chamber of commerce receives and spends public funds (from the accommodations tax (A-Tax)), the chamber is not subject to the Freedom of Information Act. Instead, the A-Tax statute and Proviso 39.2 of the Appropriation Act for Budget Year 2012–2013 (Proviso 39.2) provide a specific and comprehensive approach for the receipt, expenditure, and oversight of these funds.

We reverse the circuit court’s ruling that the chamber is subject to FOIA.

DomansNewMedia.com, LLC v. Hilton Head Island-Bluffton Chamber of Commerce (Lawyers Weekly No. 010-053-18, 16 pp.) (John Kittredge, J.) (John Few, J., dissenting) Appealed from the Circuit Court in Beaufort County (Michael Nettles, J.) Robert Stepp, Tina Cundari, and Bess DuRant for Appellant; Andrew Radeker and Taylor Smith IV for Respondent; William Wilkins, Kirsten Small, and Jay Bender for Amici Curiae. S.C. S. Ct.

Civil Rights

Prosecutor immune for Freddie Gray actions

Baltimore State’s Attorney Marilyn Mosby is absolutely immune from suit for her statements and prosecution of police officers involved with citizen Freddie Gray on the day he sustained fatal injuries in a police van, and the officers’ claims arising from those actions are thus barred.

Nero v. Mosby (Lawyers Weekly No. 001-081-18, 42 pp.) (Gregory, J.) No. 17-1166; May 7, 2018; from DMD at Baltimore (Garbis, J.). Karl Aram Pothier for Appellant; Andrew James Toland III and Brandy Ann Peeples for Appellees. 4th Cir.

Constitutional

Data breach victims have standing for contract claims

After credit cards were fraudulently opened in their names, a class of optometrists alleged an injury in fact traceable to their professional organization.

Hutton v. Nat’l Bd. of Examiners in Optometry Inc. (Lawyers Weekly No. 001-106-18, 19 pp.) (King, J.) No. 17-1506; June 12, 2018; from DMD at Baltimore (Bredar, J.) Norman E. Siegel for Appellants; Claudia Drennen McCarron for Appellee. 4th Cir.

Constitutional

Shooting suicidal man was excessive force

An officer violated the Fourth Amendment in shooting a suicidal man who had a knife but was threatening only himself. The officer was entitled to qualified immunity, but the unconstitutionality of his actions is clearly established as of the date of this opinion.

Wilson v. Prince George’s County, Md. (Lawyers Weekly No. 001-101-18, 20 pp.) (Keenan, J.) No. 17-1856; June 18, 2018; from DMD at Greenbelt (Connelly, J.) George Aubrey Harper for Appellant; Gessesse Teferi for Appellees. 4th Cir.

Constitutional

Strip club license-denial provision unconstitutional

A city ordinance empowering the police chief to deny a “sexually oriented business” license application if he determined that the business “would not comply with all applicable laws” was an overbroad prior restraint.

Am. Entertainers LLC v. City of Rocky Mount, N.C. (Lawyers Weekly No. 001-076-18, 28 pp.) (Wynn, J.) No. 17-1577; Apr. 27, 2018; from EDNC at Raleigh (Dever, J.). Gary Scott Edinger for Appellant; James Nicholas Ellis for Appellee. 4th Cir.

Contract

Economic loss rule erases conversion win

A defendant on the hook for almost $2 million in compensatory and punitive damages for conversion is entitled to judgment as a matter of law, since the plaintiffs’ conversion claim was based entirely on losses covered by the parties’ contract. Associated attorneys’ fees must also be reassessed.

Legacy Data Access Inc. v. Cadrillion LLC (Lawyers Weekly No. 001-083-18, 21 pp.) (Motz, J.) No. 17-1215; May 3, 2018; from WDNC at Charlotte (Whitney, J.) Glen Kirkland Hardymon for Appellants/Cross-Appellees; John Robert Buric for Appellees/Cross-Appellants; on brief: Benjamin E. Shook for Appellants; Preston Odom III and John Brickley for Appellees/Cross-Appellants. 4th Cir.

Contract

Fraudulent Act – Punitive Damages – Labor & Employment

Where plaintiff presented evidence that defendant’s CEO fired her on trumped up charges after learning that the company’s internal affairs committed had promised her she could not be fired for telling the IAC about her interaction with the CEO, plaintiff presented evidence of each element of breach of contract accompanied by a fraudulent act.

We affirm the trial court’s denial of defendant’s motions for a directed verdict and judgment notwithstanding the verdict.

Parker v. National Honorary Beta Club (Lawyers Weekly No. 011-043-18, 6 pp.) (D. Garrison Hill, J.) Appealed from Spartanburg County Circuit Court (R. Keith Kelly, J.) Thomas Bright and David Lee Harris Jr. for Appellant; Brian Patrick Murphy for Respondent. S.C. App.

Contract

Hotel Supplies – Statute of Frauds – Monthly Statements – Fraudulent Intent

Defendant provided plaintiff’s hotel with supplies worth more than $500, but the only writings before the court are two monthly statements. Whether these documents provide evidence as to the formation of a contract is a jury question; therefore, plaintiff is not entitled to summary judgment on defendant’s breach of contract counterclaim.

Plaintiff’s motion for partial summary judgment is denied.

Aiken Hospitality Group, LLC v. HD Supply Facilities Maintenance, Ltd. (Lawyers Weekly No. 002-104-18, 8 pp.) (J. Michelle Childs, J.) 1:16-cv-03093; James Murray; Charles Stebbins III and Mitchell Snyder for plaintiff; Mark Steven Barrow and Ryan Charles Holt for defendant. D.S.C.

Contract

Impossibility – Wage Payment Act – Treble Damages – Evidence – Deposition – Fifth Amendment Privilege – Eventual Conviction

The defendant-company agreed that, if it terminated plaintiff without cause, it would remove plaintiff from his guarantees of the company’s debts. The defense of impossibility does not relieve defendant of its agreement to perform acts over which it had no control.

We affirm judgment for plaintiff, except as to the trebling of damages arising from defendant’s withholding of bonus pay.

Morin v. Innegrity, LLC (Lawyers Weekly No. 011-041-18, 13 pp.) (D. Garrison Hill, J.) Appealed from Greenville County Circuit Court (Edward Miller, J.) Sarah Day Hurley for Appellant; Adam Crittenden Bach and Robert Hudson Smith for Respondent. S.C. App.

Corporate

LLCs liable for owner’s debts

Because Delaware law likely would allow creditors to reach LLCs’ assets under the theory of reverse veil-piercing, a debtor’s companies – which owned and managed his personal assets and in which he was the sole owner – could be held jointly liable for a judgment entered against him.

Sky Cable LLC v. DIRECTV Inc. (Lawyers Weekly No. 001-056-18, 30 pp.) (Keenan, J.) No. 16-1920; Mar. 28, 2018; WDVA at Harrisonburg (Urbanski, J.) 4th Cir.

Criminal Practice

Attempts to confuse witness supported tampering

Although the defendant advised a federal witness to just “tell the truth,” a jury reasonably found that her motives were criminal when she met the witness at the request of their mutual friend who was facing trial.

United States v. Edlind (Lawyers Weekly No. 001-069-18, 18 pp.) (Shedd, J.) No. 17-4194; Apr. 10, 2018; from WDVA at Harrisonburg (Urbanski, J.) David Leroy Parker for Appellant; Heather Lynn Carlton for Appellee. 4th Cir.

Criminal Practice

Constitutional – Due Process – Closing Arguments – Opening Statement

With no clear rule in place as to whether, in its second closing argument, the state is restricted to matters raised in the defendant’s closing, trial courts must ensure that a criminal defendant’s due process rights are not violated. In this case, the state’s second closing argument raised three relatively insignificant new points. The trial court did not violate defendant’s due process rights when it refused to allow defendant to reply.

We affirm defendant’s murder conviction.

State v. Beaty (Lawyers Weekly No. 010-044-18, 18 pp.) (George James Jr., J.) Appealed from Laurens County (W. Jeffrey Young, J.) Clarence Rauch Wise and E. Charles Grose Jr. for defendant; Alan McCrory Wilson, Donald Zelenka, Susannah Rawl Cole and David Matthew Stumbo for Respondent. S.C. S. Ct.

Criminal Practice

Constitutional – Sixth Amendment – Skype Testimony – Harmless Error

In the absence of an important public policy or at least an exceptional circumstance, modifying a defendant’s truest exercise of the Sixth Amendment right to an in-person confrontation of witnesses against him is inappropriate. Nevertheless, the Skype testimony in this case was harmless error since the witness’s testimony was largely cumulative to what was already before the jury.

We affirm defendant’s convictions for two counts of murder, kidnapping, first-degree burglary, and possession of a firearm during the commission of a violent crime.

State v. Johnson (Lawyers Weekly No. 011-032-18, 17 pp.) (Aphrodite Konduros, J.) (Paul Short Jr., J., dissenting) Substituted opinion. Appealed from Clarendon County Circuit Court (W. Jeffrey Young, J.) Laura Ruth Baer for Appellant; Alan McCrory Wilson, Donald Zelenka, W. Edgar Salter III and Ernest Adolphus Finney III for Respondent S.C. App.

Criminal Practice

CSC Charge – Constitutional – Confrontation Charge – Similar Acts Evidence – Witness’ Immigration Status

In a criminal sexual conduct with a minor trial, the court admitted the testimony of the purported victim of an uncharged second crime and her mother (Mother 2), who was in the U.S. illegally and who had been granted a U-visa (a visa which allows victims of certain crimes, who have suffered mental or physical abuse and are helpful to the government in the investigation or prosecution of the criminal activity, to be lawfully present in the U.S.); however, the trial court erroneously prevented defendant from cross-examining Mother 2 about her U-visa application. Our Court of Appeals erred in determining that this error was harmless because, in making that determination, the Court of Appeals engaged in a credibility analysis that should have been left to the jury.

We reverse and remand for a new trial.

State v. Perez (Lawyers Weekly No. 010-061-18, 12 pp.) (Donald Beatty, C.J.) (Kaye Hearn, J., joined by Donald Beatty, C.J., concurring in the result) (Costa Pleicones, Acting Justice, not participating) Appealed from the Circuit Court in Charleston County (J.C. Nicholson Jr., J.) On writ of certiorari from the Court of Appeals. Jason Luck and Robert Dudek for Petitioner/Respondent; Alan Wilson, Amie Clifford, and Scarlett Wilson for Respondent/Petitioner. S.C. S. Ct.

Criminal Practice

Evidence – Fingerprint Authentication – Prior Bad Acts – Prison

Evidence may not be authenticated with evidence that is otherwise inadmissible. In any event, the state could have authenticated defendant’s 2003 fingerprint card without referring to his previous stay in prison.

We reverse defendant’s conviction for breaking into a motor vehicle.

State v. Lawson (Lawyers Weekly No. 011-056-18, 10 pp.) (Paula Thomas, J.) Appealed from the Circuit Court in Lexington County (R. Knox McMahon, J.) Laura Ruth Baer for Appellant; Alan McCrory Wilson and David Spencer for Respondent. S.C. App.

Criminal Practice

Evidence – Prior Conviction – ‘Confinement’ – Parole – First Impression

Where defendant was convicted of murder in 1976, and where he was released on parole in 2003 (more than 10 years before the incident at issue), evidence of defendant’s 1976 conviction was not admissible under Rule 690(b). Evidence of the 1976 conviction was nevertheless admissible because defendant opened the door to such evidence.

We reverse defendant’s conviction for attempted murder. We affirm his convictions for first-degree burglary, kidnapping, first-degree assault and battery, and possession of a weapon during the commission of a violent crime.

State v. Shands (Lawyers Weekly No. 011-060-18, 21 pp.) (Paula Thomas, J.) Appealed from the Circuit Court in Laurens County (Edward Miller, J.) E. Charles Grose Jr. for Appellant; Alan McCrory Wilson, David Spencer and David Matthew Stumbo for Respondent. S.C. App.

Criminal Practice

Feds could use artist promo photo for ID array

The government didn’t violate due process by showing a kidnapping victim a photo array with the defendant’s image cropped from his music group’s promotional poster, which the victim had seen before.

United States v. Saint Louis (Lawyers Weekly No. 001-084-18, 21 pp.) (Diaz, J.) No. 17-4199; May 2, 2018; EDVA at Alexandria (O’Grady, J.) Vernida Rochelle Chaney and Nader Hasan for Appellants; Ronald Leonard Walutes Jr. for Appellee. 4th Cir.

Criminal Practice

 

Forensic search of gun smuggler’s phone reasonable

Although a forensic search of a digital phone is a “non-routine” border search that requires an individualized suspicion of illegal activity, CBP agents had such reasonable suspicion when they seized a suspected weapons smuggler’s phone and extracted communications data and comprehensive GPS location tracking.

United States v. Kolsuz (Lawyers Weekly No. 001-087-18, 37 pp.) (Harris, J.) No. 16-4687; May 9, 2018; from EDVA at Alexandria (Ellis, J.) Todd M. Richman for Appellant; Jeffrey Michael Smith for Appellee; Esha Bhandari for Amici. 4th Cir.

Criminal Practice

New test established to invoke sentencing relief

An appellant seeking habeas relief under 28 U.S.C. § 2255 satisfied the requirements of the law’s savings clause because a retroactive change in 4th Circuit law – occurring after the time for direct appeal and the filing of his first § 2255 motion – rendered his applicable mandatory minimum unduly increased, resulting in a fundamental defect in his sentence.

United States v. Wheeler (Lawyers Weekly No. 001-058-18, 34 pp.) (Thacker, J.) No. 16-6073; Mar. 28, 2018; WDNC at Charlotte (Conrad, J.) Ann Loraine Hester for Appellant; Eric J. Feigin for Appellee. 4th Cir.

Criminal Practice

No combatant immunity for Taliban defendant

A Taliban fighter’s conviction for conspiring and attempting to destroy a U.S. helicopter in 2009 was subject to the rules of non-international conflict under the Third Geneva Convention; accordingly, U.S. courts could adjudicate and review it.

United States v. Hamidullin (Lawyers Weekly No. 001-075-18, 71 pp.) (Floyd, J.) No. 15-4788; Apr. 18, 2018; from EDVA at Richmond (Hudson, J.) Geremy C. Kamens for Appellant; Joseph F. Palmer for Appellee. 4th Cir.

Criminal Practice

PCR – Collateral Consequences Unnecessary

Where petitioner has been convicted of a crime and claims his conviction is invalid due to violations of his constitutional rights to effective counsel under the Sixth Amendment and due process under the Fourteenth Amendment, he may prosecute his action seeking post-conviction relief. We extend our holding in Jackson v. State, 331 S.C. 486, 489 S.E.2d 915 (1997), and hold that, under S.C. Code Ann. § 17-27-20(A)(1), an applicant for PCR need not demonstrate any collateral consequences to his conviction, even if he has completed his sentence.

Reversed and remanded.

Brown v. State (Lawyers Weekly No. 010-046-18, 4 pp.) (Per Curiam) Appealed from Berkeley County (Kristi Lea Harrington, Plea Court Judge & Jean Hoefer Toal, PCR Judge) Laura Ruth Baer for Petitioner; Alan McCrory Wilson and Rasheeda Cleveland for Respondent. S.C. S. Ct.

Criminal Practice

Search & Seizure – Cell Phone – Warrantless Search – Abandonment

Even though defendant’s cell phone was password-protected, after he lost it at the scene of a burglary, he did not try to retrieve it and therefore abandoned it. Since the phone was abandoned, police could search its contents without a warrant.

We affirm the Court of Appeals’ decision, which upheld the trial court’s determination that the information on the cell phone was admissible.

State v. Brown (Lawyers Weekly No. 010-065-18, 14 pp.) (John Few, J.) (Donald Beatty, C.J., dissenting) Appealed from the Circuit Court in Charleston County (J.C. Nicholson Jr., J.) On writ of certiorari to the Court of Appeals. David Alexander for Petitioner; Alan McCrory Wilson, William Blitch Jr. and Scarlett Anne Wilson for Respondent. S.C. S. Ct.

Criminal Practice

Search & Seizure – Sex Offender – Failure to Register – Automatic Electronic Monitoring

Where the circumstances leading up to the imposition of electronic monitoring pursuant to S.C. Code Ann. § 23-3-540(E) will vary widely on a case-by-case basis, electronic monitoring under § 23-3-540(E) “must be ordered by the court” only after the court finds electronic monitoring would not be an unreasonable search based on the totality of the circumstances presented in an individual case.

The circuit court’s order imposing electronic monitoring on defendant is reversed. We remand for further proceedings.

State v. Ross (Lawyers Weekly No. 010-066-18, 10 pp.) (John Few, J.) (Donald Beatty, C.J., concurring in the result only without separate opinion) Appealed from the Circuit Court in Greenville County (Robin Stilwell, J.) LaNelle Cantey DuRant for Appellant; Matthew Buchanan for Respondent. S.C. S. Ct.

Criminal Practice

Search & Seizure – Suspended Driver’s License – Towed Vehicle – Private Driveway – Inventory

When officers arrested defendant for driving while his license was suspended, they followed city policy by towing the vehicle defendant had been driving, even though defendant had parked it in a private drive before the officers approached him.

We affirm the circuit court’s denial of defendant’s motion to suppress evidence (crack cocaine) found when the vehicle was inventoried as part of the city’s towing policy.

State v. Miller (Lawyers Weekly No. 010-048-18, 20 pp.) (John Few, J.) (Donald Beatty, C.J., dissenting) Appealed from Richland County Circuit Court (Doyet Early III, J.) On writ of certiorari to the Court of Appeals. Wanda Carter for Petitioner; Alan Wilson, J. Benjamin Aplin and Brent Arant for Respondent. S.C. S. Ct.

Criminal Practice

Ship owners liable for efforts to hide sludge discharge

Two Greek entities were vicariously liable for violations of international maritime-pollution laws by their cargo vessel’s crewmembers, as well as for the crewmembers attempts to conceal those violations.

United States v. Oceanic Illsabe Ltd. (Lawyers Weekly No. 001-080-18, 50 pp.) (King, J.) No. 17-4061; May 7, 2018; from EDNC at Wilmington (Howard, J.) George Michael Chalos for Appellant; Emily Anne Polacheck for Appellee. 4th Cir.

Criminal Practice

Stand Your Ground – Immunity Claim – Guilty Plea – Appeals

Indicted for attempted murder, defendant asserted immunity from prosecution pursuant to the Protection of Persons and Property Act (the Act); the trial court denied defendant’s immunity claim; and defendant then pled guilty to the lesser-included offense of assault and battery of a high and aggravated nature. Defendant’s guilty plea prohibits his assertion, on appeal, that the circuit court lacked jurisdiction over his prosecution.

We affirm defendant’s conviction of ABHAN.

State v. Sims (Lawyers Weekly No. 011-040-18, 4 pp.) (D. Garrison Hill, J.) Appealed from Chester County Circuit Court (Brian Gibbons, J.) David Alexander for Appellant; Alan McCrory Wilson, Mark Reynolds Farthing and Randy Newman Jr. for Respondent. S.C. App.

Domestic Relations

Adoption – Civil Practice – Rule 60 Motion – Extrinsic Fraud – Timely Filed

After successfully arguing to the family court that the petitioner-biological mother’s attempt to rescind her consent to adoption had to be filed as a separate action, counsel for the adoptive couple requested a final adoption hearing without notice to petitioner and then failed to inform the family court judge of petitioner’s separate action. Petitioner’s Rule 60 motion in this adoption action adequately alleged extrinsic fraud in that her attempts to be heard were systematically thwarted by the adoptive couple’s counsel.

We reverse the Court of Appeals’ decision to uphold the family court’s denial of the mother’s Rule 60 motion.

Roe v. L.C. (Ex parte Carter) (Lawyers Weekly No. 010-038-18, 11 pp.) (Per Curiam) Substituted opinion. Appealed from Charleston County Family Court (Edgar Long Jr., J.) On writ of certiorari to the Court of Appeals. A. Mattison Bogan for petitioner; K. Jay Anthony, Emily McDaniel Barrett and Thomas Lowndes Jr. for respondents. S.C. S. Ct.

Domestic Relations

Parent & Child – Custody Arrangement – Third Parties

A mother who was basically homeless and without a car left her child in the care of friends so the mother could find work and establish a home for the child. When the mother returned to South Carolina a few months later with a stable home and access to a vehicle, the family court should have returned custody of the child to the mother.

We reverse the family court’s custody order.

Urban v. Kerscher (Lawyers Weekly No. 011-051-18, 11 pp.) (John Geathers, J.) Appealed from Family Court in Orangeburg County (Michael Holt, J.) Leon Edward Green for Appellant James Jackson Jr. for Respondents. S.C. App.

Domestic Relations

Parent & Child – Custody – Grandparents’ Standing

Where the plaintiff-grandparents filed this custody action after DSS became involved due to allegations of drug use by the defendant-parents and the defendant-mother’s arrest, and where the grandparents alleged that the parents were unfit and unable to comply with a DSS safety plan, the grandparents had standing to initiate a proceeding under S.C. Code Ann. § 63-3-550, and they were not required to establish that they were de facto custodians or psychological parents.

We affirm the family court’s order awarding custody to the child’s paternal grandparents.

Jobst v. Jobst (Lawyers Weekly No. 011-058-18, 13 pp.) (Aphrodite Konduros, J.) Appealed from the Family Court in Spartanburg County (Monét Pincus, J.) Melinda Inman Butler for Appellant; George Brandt III and Robert Rhoden III for respondents. S.C. App.

Domestic Relations

Parent & Child – Joint Custody – Time & Adjustment – Equitable Distribution

By the time of the custody hearing, the parties’ child had been doing well in a week-on/week-off joint custody arrangement for 14 months. We find the passage of time and the good reports on the child’s welfare and mental adjustment to the situation comprise exceptional circumstances warranting the otherwise disfavored arrangement of joint custody.

We affirm the family court’s custody order and its clerical correction to the property settlement agreement it had approved.

Clark v. Clark (Lawyers Weekly No. 011-046-18, 12 pp.) (Aphrodite Konduros, J.) Appealed from Greenville County Family Court (David Earl Phillips, J.) Jessica Ann Salvini and Liza Marie Deever for Appellant; Gwendolynn Wamble Barrett for Respondent. S.C. App.

Environmental

Civil Practice – Preliminary Injunction – Administrative – MOX Plant

The federal defendants’ plan to stop work on the Savannah River Site (SRS) mixed oxide fuel fabrication facility project (MOX facility or project) would violate an international treaty and a federal statute and would harm South Carolina by causing the loss of a skilled workforce and by making the state a dumping ground for plutonium.

The court grants the state’s motion for a preliminary injunction, which maintains the status quo of ongoing work on the MOX project.

South Carolina v. United States (Lawyers Weekly No. 002-118-18, 36 pp.) (J. Michelle Childs, J.) 1:18-cv-01431; Alan Wilson, John William Roberts, Randy Lowell, Robert Dewayne Cook and Thomas Parkin Hunter for plaintiff; Barbara Murcier Bowens and Martin Mason Tomlinson for defendants. D.S.C.

Environmental

Pleading standard clarified for CWA discharge claims

On an issue of first impression in this circuit, plaintiffs in citizen suits under the Clean Water Act must allege a “direct hydrological connection” between ground water and navigable waters in order to state a claim for a discharge of a pollutant that passes through ground water.

Upstate Forever v. Kinder Morgan Energy Partners LP (Lawyers Weekly No. 001-067-18, 49 pp.) (Keenan, J.) No. 17-1640; Apr. 12, 2018; from DSC at Anderson (Herlong, J.) 4th Cir.

Immigration

Board didn’t explain change in deportation standard

A Board of Immigration Appeals decision effectively adopting a new standard for “crimes involving moral turpitude” could not rely on the new standard without offering good reasons for the change and addressing its retroactive effect.

Jimenez-Cedillo v. Sessions (Lawyers Weekly No. 001-061-18, 15 pp.) (Harris, J.) Nos. 17-1477 and 17-1893; Mar. 20, 2018; appealed from the BIA. Benjamin Winograd for Petitioner; Karen L. Melnik for Respondent. 4th Cir.

Immigration

Exclusionary rule applies only after egregious conduct

In civil deportation proceedings, the exclusionary rule’s predicate of “egregious” – not merely unreasonable – Fourth Amendment violations by federal officers also applies to conduct by state and local officers.

Sanchez v. Sessions (Lawyers Weekly No. 001-060-18, 22 pp.) (Motz, J.) No. 16-2330; Mar. 27, 2018; appealed from the BIA. Barry Dalin for Petitioner; Kohsei Ugumori for Respondent. 4th Cir.

Immigration

Naturalization – Moral Character – Shoplifting & Ordinance Violation Convictions

As a lawful permanent resident, petitioner must show that he had good moral character for the five years preceding the submission of his application for naturalization. Although petitioner’s actual shoplifting took place just outside the five-year window, the court finds that his convictions for shoplifting and violating a county ordinance during the five-year period adversely reflect on petitioner’s moral character. Petitioner has not offered any extenuating circumstances that lessen the culpability of either of his two convictions.

The court finds that petitioner’s character during the statutory period fell below the standard of the average citizen in the community. Consequently, petitioner cannot establish that he demonstrated good moral character during the statutory period and thus is not entitled to review of his application for naturalization.

The court grants the motion to dismiss filed by respondent United States Citizenship and Immigration Services.

Zapata v. Duke (Lawyers Weekly No. 002-080-18, 6 pp.) (Patrick Michael Duffy, J.) 2:17-cv-02367; Tarik Dante Scarlata for petitioner; Matthew Modica for respondents. D.S.C.

Immigration

USCIS could disregard custody order lacking factual basis

It was not arbitrary or capricious for U.S. Citizenship and Immigration Services to reject special immigrant juvenile status for Salvadoran girl on the basis of a state court order that lacked a factual basis for permanent custody with her father in the U.S.

Reyes v. Cissna (Lawyers Weekly No. 006-008-18, 13 pp.) (Per Curiam) No. 17-7304; June 8, 2018; from WDNC at Charlotte (Whitney, J.) Bradley Bruce Banias for Appellant; Brian Christopher Ward for Appellee. 4th Cir. Unpub.

Insurance

CGL – Ocean Transport – Pre-Shipment Fraud

A commercial general liability policy does not provide coverage for an import/export company that was defrauded by a criminal organization in the Philippines.

The defendant-insurer’s motion for summary judgment is granted.

Gibbs International, Inc. v. ACE American Insurance Co. (Lawyers Weekly No. 002-075-18, 32 pp.) (Bruce Howe Hendricks, J.) 7:15-cv-04568; Donald C Coggins Jr., John Belton White Jr., Kevin Dunlap and Marghretta Hagood Shisko for plaintiff; David Michael Collins, Joseph Ziemianski, Sean Houseal and Stacey Farrell for defendant; S. Scott Bluestein for third-party defendant. D.S.C.

Insurance

Insurers owed no duty to solicit supporting documents

A life insurance company was under no fiduciary duty to solicit required additional materials from the insured party in order to approve his coverage level, even though his employer had been deducting insurance premiums for the unapproved amount.

Gordon v. Cigna Corp. (Lawyers Weekly No. 001-086-18, 30 pp.) (Wynn, J.) No. 17-1188; May 15, 2018; from DMD at Greenbelt (Titus, J.) Jonathan Tycko for Appellant; Christopher Joseph Boran for Appellee. 4th Cir.

Intellectual Property

Preponderance standard governs Lanham Act fees

As in the Patent Act, a party prevailing on a Lanham Act claim need only prove an “exceptional” case meriting a fee award by a preponderance of the evidence. And no showing of bad faith is required.

Verisign Inc. v. XYZ.com LLC (Lawyers Weekly No. 001-090-18, 16 pp.) (Floyd, J.) No. 17-1704; May 29, 2018; from EDVA at Alexandria (Hilton, J.) Derek Newman for Appellants; Randall Karl Miller for Appellee. 4th Cir.

Labor & Employment

ADA – Termination – Legitimate Reason – Loaded Firearm, Unlocked Vehicle – Disparate Discipline – Hostile Environment – Opioid Addiction

Even though plaintiff’s co-worker was merely given a warning when he violated the defendant-employer’s policy against leaving loaded weapons in plain view in a personal vehicle, since the co-worker’s vehicle was locked while plaintiff’s vehicle was left unlocked, plaintiff has not shown that he was subjected to disparate discipline when he was fired for his violation of the policy.

Defendant’s motion for summary judgment as to plaintiff’s claims under the Americans with Disabilities Act is granted in part and denied in part.

Farr v. South Carolina Electric & Gas Co. (Lawyers Weekly No. 002-073-18, 19 pp.) (Richard Mark Gergel, J.) 3:16-cv-02668; Bryn Colette Sarvis for plaintiff; Charles Speth II, Christopher Ray Thomas and D. Michael Henthorne for defendant. D.S.C.

Labor & Employment

Termination – Negligence Claim – Workers’ Compensation Act – Exclusivity Provision

Where plaintiff is seeking damages for non-physical injuries including “pain and suffering, mental and emotional distress, shock and humiliation, and stress and anxiety” arising out of her termination from defendant’s employ, she is alleging psychological harm. Although she argues that her termination did not occur in an unusual or extraordinary manner so as to bring it within the purview of the Workers’ Compensation Act’s exclusivity provision, her allegations do not support her argument that her termination was “carried out in a relatively ordinary manner.”

The court grants defendant’s partial motion to dismiss plaintiff’s negligence claim.

Kerr v. Hammond School (Lawyers Weekly No. 002-081-18, 14 pp.) (Joseph Anderson Jr., J.) 3:17-cv-03109; Elizabeth Marie Bowen, James Lewis Cromer and James Paul Porter for plaintiff; Amy Yager Jenkins and Jonathan Gregory Lane for defendant. D.S.C.

Public Utilities

Municipal – Natural Gas – Neighboring Providers – Designated Service Area

Where the plaintiff-public works commission has already been providing natural gas in an industrial park that lies between the parties’ municipal boundaries, plaintiff has established a designated service area. Accordingly, the defendant-city could not offer its services in the park without plaintiff’s permission.

We affirm judgment for plaintiff.

Commissioners of Public Works v. City of Fountain Inn (Lawyers Weekly No. 011-050-18, 10 pp.) (Aphrodite Konduros, J.) Appealed from Laurens County Circuit Court (J. Cordell Maddox Jr., J.) David Holmes, Boyd Benjamin Nicholson Jr. and Sarah Patrick Spruill for Appellant; Robert Widener and Bernie Ellis for Respondent. S.C. App.

Real Property

Foreclosure Price – Equity & Debt Methods – Homeowners’ Association Dues – Senior Encumbrance

In this case, which seeks to set aside a foreclosure sale arising from unpaid homeowners’ association dues, the court follows the debt method and adds the amount of the home’s mortgage to the price paid at the foreclosure sale to determine that the sale price does not shock the conscience.

We affirm the master-in-equity’s denial of appellants’ motion to set aside the foreclosure sale.

Winrose Homeowners’ Association, Inc. v. Hale (Lawyers Weekly No. 011-037-18, 11 pp.) (Paula Thomas, J.) (James Lockemy, C.J., dissenting) Appealed from Richland County (Joseph Strickland, Master-in-Equity) Phillip Anthony Curiale and Brian L. Boger for Appellants; Stephanie Carol Trotter for Respondent Winrose Homeowners’ Association, Inc.; Eric Christopher Hale for Respondent Regime Solutions, LLC. S.C. App.

Real Property

Not all mortgage loans require LPMI disclosures

In a class action against Bank of America for failure to provide information regarding lender-paid mortgage insurance, the district court did not err in concluding that the Plaintiffs’ type of mortgage loans didn’t require such disclosures under the Homeowners Protection Act.

Dwoskin v. Bank of America, N.A. (Lawyers Weekly No. 001-073-18, 10 pp.) (Wilkinson, J.) No. 17-1356; Apr. 19, 2018; from DMD at Baltimore (Blake, J.) James C. White for Appellants; Bradley R. Kutrow for Appellee. 4th Cir.

Taxation

Real Property – Schools & School Boards – Charter School – Landlord/Tenant – Clarifying Statute

Where the 2014 amendment to S.C. Code Ann. 59-40-140(K) merely clarified an already existing law exempting public charter school properties – including leased property – from all state and local property taxes, the Administrative Law Court erred in ruling that appellants (a charter school and the landowner from which it leased its campus) were not entitled to a refund of their 2013 property taxes.

We reverse the ALC’s decision upholding the Department of Revenue’s denial of appellants’ request for a refund.

Hock RH, LLC v. South Carolina Department of Revenue (Lawyers Weekly No. 011-035-18, 10 pp.) (Stephanie McDonald, J.) Stephen Cox for Appellants; Sean Ryan and Jason Phillip Luther for Respondent. S.C. App.

Tort/Negligence

Building Construction – Civil Practice – Statute of Repose – Third-Party Complaint

The doctrine of “relation back” allows amended pleadings to relate back to the date of the original pleading. The defendant-general contractor, who filed a time-barred third-party complaint against one of its subcontractors, cites no authority holding that a third-party complaint relates back to the date of a pleading filed by an adverse party.

The court grants partial summary judgment for the subcontractor. The motion is denied as to the general contractor’s gross negligence claim.

Hampton Hall, LLC v. Chapman Coyle Chapman & Associates Architects, AIA (Lawyers Weekly No. 002-107-18, 6 pp.) (Richard Mark Gergel, J.) 9:17-cv-01575. Michael Scardato for plaintiff; James Alexander Joyner, Michael Wilkes, Charles Daniel Atkinson, Stephen Harrison Williams, Danielle Payne, and James Smith Jr. for defendants; Catherine Holland Chase for fourth-party plaintiff; Margaret Chamberlain Ornduff and William Duffie Powers for fourth-party defendant. D.S.C.

Tort/Negligence

Defamation – FCRA – Identity Theft Victim

Plaintiff alleges that he was the victim of identity theft, that he notified defendant USAA Federal Savings Bank about the situation and received assurances that the matter of an account opened in his name would be remedied, and that USAA instead reported him for bank fraud. Nevertheless, plaintiff’s pleadings fail to adequately state a claim for defamation, and the claim may be barred by the two-year statute of limitations.

The court grants in part defendants’ motions to dismiss, giving plaintiff leave to file an amended complaint.

Danielson v. USAA Federal Savings Bank (Lawyers Weekly No. 002-112-18, 9 pp.) (A. Marvin Quattlebaum Jr., J.) 6:27-cv-02849. Rodney Pillsbury for plaintiff; Michael Griffin, Bernie Ellis, Brea Michelle Croteau and Cindy Hanson for defendants. D.S.C.

Tort/Negligence

Fraud & Unjust Enrichment – Breach of Warranty – Notice – Misrepresentation – Economic Loss Rule – Bodybuilding Supplements

Plaintiff alleges that, before he bought defendant’s bodybuilding supplements, he read and relied on the supplements’ labels (“Every ingredient in this formula is in a dose use[d] in clinical studies and my own gym to produce significant gains in size, strength and endurance” and the listed ingredients “in full research backed doses, are in this bottle”) but that, contrary to the labels’ promises, the majority of the listed ingredients are not properly dosed, have no scientific backing, and/or have simply been found to be completely ineffective. Plaintiff’s complaint adequately states claims for fraud and unjust enrichment.

The court denies defendant’s motion to dismiss plaintiff’s fraud and unjust enrichment claims. The court grants the motion to dismiss plaintiff’s breach of warranty, negligent misrepresentation, and intentional misrepresentation claims.

Sandviks v. PhD Fitness, LLC (Lawyers Weekly No. 002-071-18, 14 pp.) (J. Michelle Childs, J.) 1:17-cv-00744; Harper Todd Segui and Nick Suciu III for plaintiff; Catherine Farrell Wrenn, Keith Munson, Ashley Lauren Vulin, Charles Morton English Jr., John Francis McGrory Jr. and Kaley Louise Fendall for defendant. D.S.C.

Tort/Negligence

FTCA – Navy Commissary – Slip & Fall – Discretionary Function & Independent Contractor Exceptions

Even though plaintiff was in a Navy commissary when she slipped and fell in a puddle of water under a leaky air conditioner, since a contractor provided daytime custodial services for the commissary, and since the contractor had responsibility for custodial services at the time of day when plaintiff fell, the Federal Tort Claims Act’s discretionary function and independent contractor exceptions relieve the United States of liability for plaintiff’s injuries.

The government’s motion to dismiss is granted.

Graham v. United States (Lawyers Weekly No. 002-058-18, 12 pp.) (David Norton, J.) 2:16-cv-03863; Bradley Hunter Banyas, Daniel Nathan Hughey and Stuart Hudson for plaintiff; Matthew Modica, Jeffrey Michael Bogdan and Morris Dawes Cooke Jr. for defendants. D.S.C.

Tort/Negligence

Medical Malpractice – Future Damages – Medical Care – Free VA Services

Plaintiff received past medical services from the Veterans Administration and is eligible to continue to receive free medical services from the VA in the future; however, the VA is the healthcare provider which allegedly caused plaintiff’s grievous injuries. Although the government does not pay twice for the same injury, no federal authority requires an injured plaintiff to seek medical care from the party whose negligence created his need for such care simply because that party offers it without charge.

Therefore, the court grants plaintiff’s motion in limine to preclude defendant from presenting argument or evidence that the VA could provide plaintiff with free medical care in the future.

Egan v. United States (Lawyers Weekly No. 002-087-18, 8 pp.) (Donald Coggins Jr., J.) 3:15-cv-03533; James Matthews III, John Daniel Kassel, Lee Atkinson, Theile Branham McVey and Erin Steffin Bevins for plaintiffs; Barbara Murcier Bowens and Marshall Prince for defendant. D.S.C.

Tort/Negligence

Products Liability – Design Defect – Industrial Saw – Lack of Safety Features

Plaintiff’s hand was severely injured when he reached into an industrial saw —manufactured by defendant – to dislodge a jammed piece of wood. Although plaintiff’s expert’s proposed safety improvements for the saw are not actual designs and are not accompanied by cost estimates, one of the suggested improvements is that the defendant-manufacturer include written safety instructions, which defendant admits would not be cost prohibitive.

The court denies defendant’s motion for summary judgment as to plaintiff’s design defect claim but grants it as to his claims of failure to warn, manufacturing defect, and breach of warranty.

Smith v. Brewco, Inc. (Lawyers Weekly No. 002-064-18, 17 pp.) (David Norton, J.) Austin Howell Crosby, Ronnie Crosby, Shane Morris Burroughs and David Christopher Marshall for plaintiff; Joseph Odell Thickens, Mark Steven Barrow, Mark Gende and Davis Wayne Love for defendant. 5:16-cv-01288; D.S.C.

Tort/Negligence

RICO – Mail & Wire Fraud – Veterans’ Benefits – Declaratory Judgment

The alleged intimate involvement of a lawyer and her firm in a scheme to defraud veterans of their pensions is sufficient to state RICO and conspiracy claims against them.

The court denies defendants’ motions to dismiss.

Lyons v. BAIC Inc. (Lawyers Weekly No. 002-082-18, 13 pp.) (Donald Coggins Jr., J.) 6:17-cv-02362; Anne Richardson, Kenton James Skarin, L. Adelaide Anderson, Stephanie Lewis, William Dolan and John Sulau for plaintiffs; Elizabeth LaMance Bakker, J. W. Matthews III, Ralph Lee Gleaton II, David Overstreet, Michael Baxter McCall II and Robert Canna Blain for defendants. D.S.C.

Tort/Negligence

Sovereign Immunity – Military Contractor – Uncovered Pit

Where plaintiffs allege that they were injured when, while driving on Bagram Airfield in Afghanistan, their motor vehicle drove into an excavation ditch, which the defendant-military contractor had left uncovered and unprotected by lights, barricades, warning signs, or other precautionary indications that the pit was uncovered, plaintiffs’ claims are not barred by the political question doctrine, preemption, or derivative sovereign immunity.

The court denies defendant’s motion to dismiss.

Norat v. Fluor Intercontinental, Inc. (Lawyers Weekly No. 002-070-18, 32 pp.) (Bruce Howe Hendricks, J.) 6:14-cv-04902; Kenneth George Goode Jr., Daniel Prenner, David Marvel, Justin Joaquin Arenas and Kenneth Charles Suria for plaintiffs; Kristen Lacombe Nowacki, Megan Marie Early and Robert Daniel Moseley Jr. for defendant. D.S.C.

Tort/Negligence

Statistical significance analysis must be reliable

Experts’ calculation and application of statistical significance (p-values) must be relevant, reliable, and not likely to confuse jurors. After plaintiffs’ expert opinions were excluded, their non-expert evidence was not sufficient to survive summary judgment, and the district court appropriately granted it against all plaintiffs in the multidistrict litigation.

In re: Lipitor Marketing, Sales Practices & Prod. Liability (No II) Litigation MDL 2502 (Lawyers Weekly No. 001-107-18, 46 pp.) (Diaz, J.) No. 17-1140; June 12, 2018; from DSC at Charleston (Gergel, J.) Derek T. Ho for Appellants; Mark Cheffo for Appellees. 4th Cir.

Tort/Negligence

Wrongful Death – Motorcycle Accident – New USPS Carrier

Even though plaintiff’s decedent was following his fellow motorcyclist too closely, and even though the decedent never collided with defendant’s postal carrier, the bulk (90 percent) of the fault for the decedent’s fatal motorcycle accident belongs to a new postal carrier who was driving her car in the awkward manner in which she had been trained and who accidentally entered the motorcyclists’ lane of travel.

The court awards plaintiff damages of $3,718,724.47.

Jackson v. United States (Lawyers Weekly No. 002-083-18, 42 pp.) (R. Bryan Harwell, J.) 4:16-cv-03219; Gene McCain Connell Jr., John Edward Cuttino, John Hudson Jr., and John Dwight Hudson for plaintiff; Lee Ellis Berlinsky and Matthew Modica for defendant. D.S.C.

Trusts & Estates

Domestic Relations – Civil Practice – Pleadings – Bigamy

Even though, when it filed its wrongful death action, the respondent-estate alleged that appellant Charles Gary was the decedent’s surviving spouse, since Gary was still married to someone else when he purported to marry the decedent, the estate is not estopped from taking a position contradictory to its pleadings in the wrongful death action.

We affirm the circuit court’s ruling that Gary was not the decedent’s husband at the time of her death and not an heir to her estate.

Gary v. Lowcountry Medical Transport, Inc. (Lawyers Weekly No. 011-054-18, 6 pp.) (James Lockemy, C.J.) Appealed from Circuit Court in Hampton County (Perry Buckner III, J.) Joseph Dawson III for Appellant; Richard Alexander Murdaugh, Bert Glenn Utsey III and Austin Howell Crosby for Respondent. S.C. App.

Trusts & Estates

Wills – PR Commission – Real Property Distribution – Two-Judge Rule

A will’s direction that a personal representative receive “reasonable compensation” is insufficient to bring the PR’s commissions within the statutory exception to the usual five percent cap on such commissions. Nevertheless, the probate court’s award of a commission equal to 10 percent of the estate’s value is tantamount to a finding that the PR’s actions constituted “extraordinary services” under S.C. Code Ann. § 62-3-719.

We affirm the Court of Appeals’ decision to uphold the award of $51,300 in commissions for the petitioner-personal representative’s (PR’s) services and the determination that respondent-beneficiaries Martha Brown and Mary Moses are responsible for their own attorney’s fees. We reverse the Court of Appeals’ conclusion that the PR is not entitled to recover necessary expenses, including reasonable attorney’s fees, incurred at the settlement hearing under S.C. Code Ann. § 62-3-720, and we remand to the probate court for that determination.

Sullivan v. Brown (In re Estate of Kay) (Lawyers Weekly No. 010-054-18, 11 pp.) (Kaye Hearn, J.) Appealed from Probate Court in Laurens County (Donald Hocker, J.) Daryl Hawkins for Petitioner/Respondent; John Ferguson for Respondents/Petitioners. S.C. S. Ct.

Workers’ Compensation

Disability Level – Medical Evidence – Causation – Back Injury & Lung Cancer

After his compensable back injury, the claimant complained to his doctors about persistent pain, numbness, and weakness in his right leg, and two doctors diagnosed him with lumbar radiculopathy; thus, the claimant was entitled to proceed under S.C. Code Ann. § 42-9-40 to show that his back injury caused additional injury or impairment to his leg.

We reverse the Workers’ Compensation Commission Appellate Panel’s order, which ruled that the claimant was not totally and permanently disabled as a result of his compensable back injury.

Dent v. East Richland County Public Service District (Lawyers Weekly No. 011-036-18, 12 pp.) (James Lockemy, C.J.) (Paula Thomas, J., dissenting) Appealed from the Workers’ Compensation Commission. Matthew Robertson for Appellant; Page Snyder Hilton for Respondents. S.C. App.

 



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